Saturday, June 02, 2007

The best justice money can buy

RE: Courting Discrimination

----------------- Bulletin Message -----------------
From: The Man Common
Date: Jun 1, 2007 8:53 AM


Courting Discrimination


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Title VII of the Civil Rights Act of 1964 prohibits "employment discrimination based on race, color, religion, sex and national origin." But unfortunately, inequality still exists, and this week, the Supreme Court sided in favor of discrimination by stripping the civil rights law of "much of its potency." On Tuesday, the Court voted 5-4 to "throw out a Goodyear employee's complaint that she earned thousands of dollars less than her male counterparts." Writing for the all-male majority, Justice Samuel Alito "forced an unreasonable reading on the law, and tossed aside longstanding precedents to rule in favor of an Alabama employer." Justice Ruth Bader Ginsburg took the unusual step of reading her dissent aloud from the bench, making clear that "the majority [was] not only mistaken, but profoundly wrong." Discrimination is not "long past," as the majority tried to argue in this case. Women continue to make just 77 cents for every dollar a man is paid. As the New York Times noted, "The ruling is the latest indication that a court that once proudly stood up for the disadvantaged is increasingly protective of the powerful."

REWARDED FOR HIDING DISCRIMINATION: Under Title VII, an employee has 180 days to file a complaint of pay discrimination. In Ledbetter v. Goodyear Tire & Rubber Co., the Supreme Court looked at when "that 180-day clock starts ticking." The majority sided with Goodyear, arguing that the employee, Lilly Ledbetter, waited too long to file. It argued that employees must bring suit "within 180 days after their pay was set," even "if the effects of the initial discriminatory act were not immediately apparent to the worker and even if they continue to the present day." But this requirement ignores the realities of pay discrimination. As Ginsburg noted in her dissent, "Pay disparities often occur, as they did in Ledbetter's case, in small increments; cause to suspect that discrimination is at work develops only over time. Comparative pay information, moreover, is often hidden from the employee's view. Employers may keep under wraps the pay differentials maintained among supervisors, no less the reasons for those differentials." She added that a woman's "initial readiness to give her employer the benefit of the doubt should not preclude her from later challenging the then current and continuing payment of a wage depressed on account of her sex." In Ledbetter's case, her pay had, over time, fallen approximately 40 percent behind the pay of her male counterparts. In 1998, she was making "$3,727 a month, while the lowest-paid man was making $4,286." Additionally, she was the "only woman among 16 men at the same management level, who was paid less than any of her colleagues, including those with less seniority."

SUPREME COURT POLITICKING: Supreme Court justices read aloud dissents "just a handful of times each year." Justice Ginsburg has gone years without reading one, and has never read more than one in a term -- until now. Her oral dissent from Ledbetter was her second this term. In April, Ginsburg dissented from the majority's decision to uphold a nationwide ban on "partial birth" abortion. She explained that the majority opinion's language seemed to be based on a deep hostility to women's rights, rather than on sound scientific evidence or jurisprudence: "The Court's hostility to the right Roe and Casey secured is not concealed." For example, Justice Anthony Kennedy, writing for the majority, concluded -- without any scientific evidence -- that women "come to regret their choice to abort the infant life they once created and sustained." Ginsburg added that the majority's "way of thinking reflects ancient notions about women’'s place in the family and under the Constitution— ideas that have long since been discredited." "What she is saying is that this is not law, it's politics," said Stanford law professor Pamela S. Karlan. "She is accusing the other side of making political claims, not legal claims." It is significant that the two cases in which Ginsburg orally dissented were ones in which the rights of women were eroded. Alito -- who wrote the opinion in Ledbetter and has consistently ruled in favor of racial and gender discrimination -- took the place of Sandra Day O'Connor, who had a strong record on gender discrimination and "was offered only secretarial jobs after graduating third from her Stanford Law class." Similarly, Chief Justice John Roberts once called equal pay for women a "radical redistributive concept."

DISCRIMATION 'STILL A MAJOR PROBLEM': Ledbetter is troubling because it discourages employers from quickly uncovering and correcting pay discrimination. From "2001 to 2006, workers brought nearly 40,000 pay discrimination cases"; many such cases will now be barred. Women will not be the only ones affected either. Title VII also bars discrimination on the basis of race, color, religion, and national origin, and people bringing claims on these other bases may also be restricted by this interpretation of the 180-day rule. "We agree wholeheartedly that sex discrimination against women is still a major problem in the workplace," said David Grinberg, spokesman for the Equal Employment Opportunity Commission, the federal agency charged with enforcing Title VII that initially ruled in favor of Ledbetter. (The Bush administration nevertheless "disavowed the agency's position and filed a brief on the side of the employer" when the case reached the Supreme Court.) Women of color are hit hardest by unequal pay. "African American women earn only 68 cents and Latinas 57 cents for every dollar that men earn." Complaints of discrimination have also increased. Black women "filed 3,898 sex discrimination charges in 1992, and 4,686 in 2003, a 20 percent increase. Hispanic women filed 1,052 charges in 1992 and 1,763 charges in 2003, a 68 percent increase." In a 2006 AFL-CIO survey, 57 percent of women said that their employers did not provide equal pay to men and women.

CONGRESS ACTING QUICKLY: Congress plans to act quickly to ensure that employees are able to file discrimination complaints after the Supreme Court's ruling. "As Justice Ginsburg suggests, the ball has now fallen into Congress' court and we intend to address this ruling," House Education and Labor Chairman George Miller (D-CA) said on Wednesday. "The Supreme Court's narrow decision makes it more difficult for workers to stand up for their basic civil rights at work, and that is unacceptable." Miller and Reps. Rosa DeLauro (D-CA) and Eleanor Holmes Norton (D-DC) plan to introduce such legislation shortly. Sens. Ted Kennedy (D-MA), Tom Harkin (D-IA), Hillary Clinton (D-NY), and Barbara Mikulski (D-CA) announced on Wednesday that next week, they will also offer legislation "to ensure that workers are able to enforce their legal right to equal pay."

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